WALBURGA BELTRAN, WILLIAM BELTRAN, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVES OF THE ESTATE OF CANDICE BELTRAN, A MINOR DECEASED, APPELLANTS,
v.
WASTE MANAGEMENT, INC. OF FLORIDA, BOBBY JOHNSON AND AMERICAN MOTORISTS INSURANCE COMPANY, APPELLEES
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The trial court erred by instructing the jury on the doctrine of last clear chance, which is inapplicable in a comparative negligence jurisdiction.
Plaintiffs appealed a jury verdict finding no negligence on the part of the defendant driver and Waste Management. The trial court had given a jury in…
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PER CURIAM.
The Beltrans appeal from a final judgment following a jury trial which found no negligence on the part of Waste Management, Inc. of Florida and its driver, Bobby Johnson. We reverse.
The trial court erred when it granted, over plaintiff’s objection, a defense-requested instruction dealing, in essence, with “last clear chance”,1 which was approved by our Supreme Court in Kerr v. Caraway, 78 So. 2d 571 (Fla.1955). Since Kerr was decided, Florida has become a comparative negligence state. Hoffman v. Jones, 280 So. 2d 431 (Fla.1973). To the extent that the instruction approved in Kerr has any efficacy, it is not applicable in a comparative negligence setting. Whitman v. Red Top Sedan Service, Inc., 218 So. 2d 213 (Fla. 3d DCA 1969); see also Fla.Std.Jury Instr. (Civ.) 4.7; cf. Florida East Coast Railway Co. v. McKinney, 227 So. 2d 99 (Fla. 1st DCA 1969).
For the foregoing reasons, the judgment of the circuit court is reversed and this cause remanded for a new trial.
. The charge given by the court is as follows: If a motorist has the right of way, that motorist has the right to assume that another approaching motorist will yield the right of way. And it will not be contributory negligence to act on such an assumption on proceeding into the intersection, unless such motorist became aware of the fact that the right of way would not be given and unless he or she then had a clear opportunity to avoid the collision.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973)
- Whitman v. RED TOP Sedan Serv., Inc., 218 So. 2d 213 (Fla. 3d DCA 1969)
- Kerr v. Caraway, 78 So. 2d 571 (Fla. 1955)
- Fla. E. Coast Ry. Co. v. Delbert D. McKINNEY, 227 So. 2d 99 (Fla. 1st DCA 1969)